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Restitution As an Alternative Remedy for a Tort

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NYLS Law Review Vols. 22-63 (1976-2019) Volume 2 Issue 1 New York Law Forum, Volume 2, Issue Article 2 1, 1956 January 1956 RESTITUTION AS AN ALTERNATIVE REMEDY FOR A TORT Ludwig Teller Follow this and additional works at: https://digitalcommons.nyls.edu/nyls_law_review Part of the Law Commons Recommended Citation Ludwig Teller, RESTITUTION AS AN ALTERNATIVE REMEDY FOR A TORT, 2 N.Y.L. SCH. L. REV. 40 (1956). This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Law Review by an authorized editor of DigitalCommons@NYLS. RESTITUTION AS AN ALTERNATIVE REMEDY FOR A TORT LUDWIG TELLER RESTITUTION is a term now widely used to define the remedy which older practitioners customarily describe by the words quasi- contracts. The remedy of restitution is designed to prevent unjust enrichment; the measure of recovery is not the plaintiff's damage but the benefit secured or reaped by the defendant at the expense of the plaintiff. The preference for restitution as the descriptive word comes from three main purposes: first, to indicate the inclusion of equitable remedies of a quasi-contractual nature, like subrogation, the equita- ble lien, the constructive trust; second, to get away from many of the historical abstractions attached to the common counts in general assumpsit which often limit the availability of the restitutionary reme- dy; third, to point up the broad purview of the remedy, and the ex- tent to which it is a distinct subject which cuts across all branches of the law. It is a vehicle for effectuating justice in numerous situa- tions where accustomed remedial categories may prove inadequate.' A significant contribution to the subject of restitution was re- cently made in New York by the Appellate Division, First Depart- ment, in Dentists Supply Co. of New York v. Cornelius,' whose de- cision was affirmed by the Court of Appeals without opinion. The present article is devoted to the ramifications of the decision in this case, in relation to the action for restitution as an alternative remedy. LuDwxG TEER, of the New York Bar, is a Professor of Law at New York Law School, a member of the New York State Legislature, and the author of the treatise Tnn LAW GoVEwmnG LABOR DispumTs AND COLLECTIVE BAoAnnnG and other books and articles. The present article is in substance part of a forthcoming treatise on Restitution. 1 Keener's work on quasi-contracts published in 1893, which was followed by Woodward's book in 1913, marked out some of the boundaries of the quasi-contrac- tual remedy. Then this important remedy was allowed to become an unclassified appendage of other subjects until the publication in 1937 of the monumental Restate- ment of Restitution by the American Law Institute. "Restitution is a term unknown to legal treatises, encyclopedias and digests, yet it represents one of a trinity of prin- ciples which actuate the proceedings for remedial justice. The law of contracts en- forces promises. The rules of tort provide compensation for harm. Restitution is the equitable principle by which one who has been enriched at the expense of another, whether by mistake or otherwise, is under a duty to return what has been received or its value to the other." Seavey, Problems in Restitution, 7 OxA. L. RPv. 257 (1954). 2 281 App. Div. 306, 119 N. Y. S. 2d 570 (1st Dep't. 1953), aff'd. on certified questions, 306 N. Y. 624, 116 N. E. 2d 238 (1953). 19561 RESTITUTION AS ALTERNATIVE REMEDY It appeared in the Cornelius case that the plaintiff's goods were transferred by his agent without authority to the defendant. This, of course, made the defendant liable for the tort of conversion, gov- erned by a three years' statute of limitations. Apparently that stat- ute had run, so the plaintiff sought to take advantage of the six years' statute applicable to contract actions by suing for restitution, to recover the value of the goods. Special Term held he could not do so, and dismissed the complaint. The Appellate Division reversed, and by a divided court held that the longer contract statute could be invoked. The Court of Appeals affirmed without opinion. This, it is submitted, was a desirable holding. Perhaps, as interesting as the decision itself was the fairly short opinion of the Appellate Division. Nowhere was the word "restitu- tion" used. No reference was made to the Restatement of Restitution, which appears to support the court's holding.8 "Plaintiff," said the court, "apparently has waived the tort of conversion and is suing in quasi-contract on the theory that he has ratified the transfer as if it were a sale," citing Terry v. Munger,4 about which much has been written (mostly critical) in law review articles and in the opinions of courts of other states, and which has been repudiated by statute in New York. It is well settled that a person aggrieved by a tort committed upon him may at his election sue in the alternative action for resti- tution where the tortfeasor has been enriched by the tort." It is not sufficient that a tort has been committed; it must further appear that the tortfeasor has been enriched as a result.6 The mere "duty to pay damages for a tort does not imply a promise to pay them."7 Resti- tution will not lie for an assault and battery, since while the plaintiff is injured, the defendant is not enriched. Similarly, restitution will 8 REsTATEr T, REST Ti"o § 524 (1937). 4 121 N. Y. 161, 24 N. E. 272 (1890). 5 REsTATEET, REsTrrTuTio § 3 (1937); Corbin, Waiver of Tort and Suit in Assumpsit, 19 YAr= L. J. 221 (1910). Normally the action is for money, but jurisdic- tion resides in equity to grant a restitutionary remedy by way of specific relief to repair the defendant's tort, as where he tortiously withholds a unique chattel. See Taliaferre v. Reirdon, 186 Okla. 603, 99 P. 2d 522 (1940); McGowin v. Renington, 12 Pa. 56, 51 Am. Dec. 584 (1849). For other cases see 1 PomERoy, EQu T JUars- PRUDENCE, § 185 (5th ed., San Francisco and Rochester, 1942). 6 Reynolds Bros. v. Padgett, 94 Ga. 347, 21 S. E. 570 (1894); Greer v. Newland, 70 Kan. 315, 78 Pac. 835 (1904); Kyle v. Chester, 42 Mont. 552, 113 Pac. 749 (1911); RESTATEMENT, REsTioUT § 523 (1937). 7 Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892 (1888). 8 Bigby v. United States, 188 U. S. 400, 23 S. Ct. 468, 47 L. Ed. 519 (1903). NEW YORK LAW FORUM [VOL. 2 not lie against a wrongdoer where a third party, not the wrongdoer himself, received the benefit.' I. "WAIVER" VERSUS ELECTION OF REMEDIES THE court in the Cornelius case stated that the plaintiff "waived the tort of conversion" when he sued for restitution. This is a com- mon statement in judicial opinions. But it is clear that a party who selects the alternative restitutionary remedy does not "waive" the tort; the tort is the basis of the restitutionary remedy, and proof of the commission of the tort is as necessary when such remedy is in- voked as when action is brought in tort for damages.'0 Thus, an in- fant, though not accountable for breach of contract, may be sued for restitution for a tort. 1 When by statute a body execution is au- thorized in actions "founded upon tort," it has been held that the statute may be invoked in an alternative action for restitution for a tort.'2 The view that the tort is "waived" has led to unfortunate de- cisions in a variety of connections. It has been held, for example, that when property is sold on credit, an action for restitution brought to remedy the defendant's fraud in securing the sale may not be brought until the credit period has expired; the election to sue for restitution instead of for the tort is said to "waive" the fraud and to "affirm" the sale and the period of credit attached to the sale.13 "Waiver" is one of the most confusing terms in our law, and See also N. Y. Central R. Co. v. State, 242 App. Div. 421, 287 N. Y. S. 850 (3d Dep't. 1936) (negligent damage to property). 9 Taylor v. Currey, 216 Ill. App. 19 (1919); Scherger v. Union National Bank, 138 Kan. 239, 25 Pac. 588 (1933); Ward v. Guthrie, 193 Ky. 76, 234 S. W. 955 (1921); Howard v. Swift, 356 Ill.80, 190 N. E. 102 (1934); National Trust Co. v. Gleason, 77 N. Y. 400 (1879). See also Schall v. Gamors, 251 U. S. 239, 40 S. Ct. 135, 64 L. Ed. 247 (1919). 10 See RESTATFmENT, RESiTTUTION, Ch. 7, at 525 (1937); Albee v. Schmied, 250 Mich. 270, 230 N. W. 146 (1930). Elwell v. Martin, 32 Vt. 217 (1859). 11 Bristow v. Eastman, 1 Esp. 172 (1794). 12 Wheeler v. Wilkin, 98 Colo. 568, 58 P. 2d 1223 (1936). '3 Kellogg v. Turpie, 93 Ill.265 (1879); Prest v. Farmington, 117 Me. 348, 104 Atl. 521 (1918). But see American Woolen Co. v. Samuelson, 226 N. Y. 61, 123 N. E. 154 (1919); Stocksdale v. Schuyler, 55 Hun. 610, 8 N. Y. Supp. 813 (1890), aff'd. 130 N. Y. 674, 29 N. E. 1034 (1891). The same faulty approach arises when it said that a party to an executory bilateral contract containing mutually dependent prom- ises may, where the contract is repudiated or materially breached, "waive" the breach (or, what is a variant of the same underlying notion, "rescind" the contract) and sue instead for restitution.
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